I think the problem goes beyond the rather loose standard for who gets called a "radical" and the legality of invasion of professors' copyright through unauthorized taping of their classroom lectures. At issue is the chilling impact on freedom of speech, and I can do not better than to cite at length below the pertinent comments of Justice Douglas in another time of fear-mongering, when New York state's "Feinberg law" provided for firing of teachers deemed subversive, which carried, at least by implication, the surveillance of such teachers' classroom presentations.

"The very threat of such a procedure is certain to raise havoc with academic freedom. Youthful indiscretions, mistaken causes, misguided enthusiasms - all long forgotten - become the ghosts of a harrowing present. Any organization committed to a liberal cause, any group organized to revolt against an hysterical trend, any committee launched to sponsor an unpopular program becomes suspect. These are the organizations into which Communists often infiltrate. Their presence infects the whole, even though the project was not conceived in sin. A teacher caught in that mesh is almost certain to stand condemned. Fearing condemnation, she will tend to shrink from any association that stirs controversy. In that manner freedom of expression will be stifled.

But that is only part of it. Once a teacher's connection with a listed organization is shown, her views become subject to scrutiny to determine whether her membership in the organization is innocent or, if she was formerly a member, whether she has bona fide abandoned her membership.

The law inevitably turns the school system into a spying project. Regular loyalty reports on the teachers must be made out. The principals become detectives; the [342 U.S. 485, 510] students, the parents, the community become informers. Ears are cocked for tell-tale signs of disloyalty. The prejudices of the community come into play in searching out the disloyal. This is not the usual type of supervision which checks a teacher's competency; it is a system which searches for hidden meanings in a teacher's utterances.

What was the significance of the reference of the art teacher to socialism? Why was the history teacher so openly hostile to Franco Spain? Who heard overtones of revolution in the English teacher's discussion of the Grapes of Wrath? What was behind the praise of Soviet progress in metallurgy in the chemistry class? Was it not "subversive" for the teacher to cast doubt on the wisdom of the venture in Korea?

What happens under this law is typical of what happens in a police state. Teachers are under constant surveillance; their pasts are combed for signs of disloyalty; their utterances are watched for clues to dangerous thoughts. A pall is cast over the classrooms. There can be no real academic freedom in that environment. Where suspicion fills the air and holds scholars in line for fear of their jobs, there can be no exercise of the free intellect. Supineness and dogmatism take the place of inquiry. A "party line" - as dangerous as the "party line" of the Communists - lays hold. It is the "party line" of the orthodox view, of the conventional thought, of the accepted approach. A problem can no longer be pursued with impunity to its edges. Fear stalks the classroom. The teacher is no longer a stimulant to adventurous thinking; she becomes instead a pipe line for safe and sound information. A deadening dogma takes the place of free inquiry. Instruction tends to become sterile; pursuit of knowledge is discouraged; discussion often leaves off where it should begin.

This, I think, is what happens when a censor looks over a teacher's shoulder. This system of spying and [342 U.S. 485, 511] surveillance with its accompanying reports and trials cannot go hand in hand with academic freedom. It produces standardized thought, not the pursuit of truth. Yet it was the pursuit of truth which the First Amendment was designed to protect. A system which directly or inevitably has that effect is alien to our system and should be struck down. Its survival is a real threat to our way of life. We need be bold and adventuresome in our thinking to survive. A school system producing students trained as robots threatens to rob a generation of the versatility that has been perhaps our greatest distinction. The Framers knew the danger of dogmatism; they also knew the strength that comes when the mind is free, when ideas may be pursued wherever they lead. We forget these teachings of the First Amendment when we sustain this law." William O. Douglas, dissenting in
ADLER v. BOARD OF EDUCATION, 342 U.S. 485 (1952)

More Comments:

John H. Lederer -
1/22/2006

One learns new things every day. I had always assumed that the attack on free speech that occurred when a person in a position of authority repressed criticism was in the repression.

I had never realized the reverse side: that the criticism itself is what suppressed the freedom of speech of the superior -- the fear of ridicule, the anxiety caused by opposition, the possibility of adverse evaluation by those not fully supportive of one's methods or teachings, etc.-- and thus repressing criticism was important to maintaining free speech.

It is surprising how illuminating academics can be.

Robert KC Johnson -
1/20/2006

I'll open, again, with the caveat that I think that the approach of the UCLAprofs people is counterproductive to the goal that they want to accomplish.

That said: a comparison to the Feinberg Law? This was a piece of legislation passed by the state legislature that called for the dismissal of teachers for their political beliefs. The Bruin Alumni Association is not the CA state legislature, and none of its activities have any public policy effect.

Also, I think any threat about the "chilling impact on freedom of speech" is considerably overstated. The vast majority of professors in question here have tenure. How, exactly, does publicizing the views of tenured professors chill their freedom of speech?

Eugene Volokh's two posts on this issue strike me as well done. As he notes, "Now it's true that this may have a 'chilling effect' in the sense of deterring some people from saying controversial things, in class or outside it. But all criticism has such an effect; much criticism is intended to have such an effect. It's even good when criticism has such a deterrent effect, for instance when it deters us from saying foolish or unsound things. If you criticize my posts, my articles, or my lectures, and I recognize that your criticism is apt — that my lectures were too partisan, or that my arguments were unsound — then I may well change what I say. That's criticism performing its proper function.

"And if I think your criticism is unsound, my duty is to remain undeterred. It's not always an easy duty to fulfill. But look: Most of my colleagues have tenure. Even our untenured colleagues have the protection of being reviewed by their peers, and peers who are generally unlikely to much sympathize with what the UCLAProfs.com site says. We're in a much better position than other public servants, who routinely have to deal with criticism. If we're not robust enough to resist unsound criticisms — if we're deterred from saying certain things even when we think they should be said — what's the point of all the employment protections we have?"